[1] Whether a lease contract is effective even if the lessor has no ownership or other right of lease on the leased object (affirmative)

[2] The term of a lease agreement which is implicitly renewed pursuant to Article 6 (1) of the former Housing Lease Protection Act (=2 years)

[3] In a case where, on June 15, 1998, Gap leased Byung-owned apartment on the lease period of six months to Eul, and then renewed the lease contract without the termination notice, Eul notified the termination of the contract and deposited the lease deposit on May 25, 2006, and thereafter Eul delivered the apartment to Byung on March 2, 2009 upon Byung's request, the case affirming the judgment below that the above lease contract, which was implicitly renewed on the two-year period pursuant to Article 4 (1) of the former Housing Lease Protection Act, was renewed for two years since the expiration date of the lease contract was June 14, 2006, and the termination of the lease contract was completed by transferring Eul-owned apartment at Byung's request, and thus, it was recognized as the amount equivalent to the rent by March 2, 2009, which is the delivery date of the apartment.

[1] Article 618 of the Civil Code / [2] Article 4 (1) and Article 6 (1) of the former Housing Lease Protection Act (amended by Act No. 5641 of Jan. 21, 199) / [3] Article 618 of the Civil Code, Article 4 (1) and Article 6 (1) of the former Housing Lease Protection Act (amended by Act No. 5641 of Jan. 21, 199)

[1] Supreme Court Decision 94Da54641 Decided September 6, 1996 (Gong1996Ha, 3095) Supreme Court Decision 2008Da38325 Decided September 24, 2009 (Gong2009Ha, 1733) / [2] Supreme Court Decision 2002Da41633 Decided September 24, 2002 (Gong2002Ha, 2540)

Plaintiff (Attorney Kim Young-gu, Counsel for plaintiff-appellant)

Defendant

Busan High Court Decision 2009Na19888 decided July 1, 2010

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the assertion that the instant sales contract was rescinded and the money paid in the purchase price was replaced by the rental deposit

The allegation in the grounds of appeal in this part is not only a assertion against the res judicata of the judgment of the first instance in the judgment that accepted the claim that “the defendant shall execute the procedure for ownership transfer registration for the apartment of this case on June 15, 1998 with respect to the plaintiff,” but also it is against the adoption of evidence and fact-finding which belong to the exclusive authority of the fact-finding court, and it is not acceptable.

2. As to the amount of damages equivalent to the rent after the Defendant notified the termination of the lease contract and deposited the amount of KRW 40 million.

A lease is established when one of the parties has agreed to allow the other party to use an object and make a profit therefrom, and the other party has agreed to pay rent for it (see Article 618 of the Civil Act). Even if a lessor has no ownership or right to lease the object, the lease is effective (see, e.g., Supreme Court Decision 2008Da38325, Sept. 24, 2009).

In addition, Article 4(1) of the former Housing Lease Protection Act (amended by Act No. 5641 of Jan. 21, 1999; hereinafter the same) provides that "a lease with no fixed period or with a fixed period of less than two years shall be deemed two years," and Article 6(1) of the same Act provides that "a lease shall be deemed to have been renewed under the same conditions as the former lease at the time when the lease period expires if the lessee fails to notify the lessee of his/her refusal to renew the lease or to notify the lessee of his/her refusal to renew the lease without any change in the terms and conditions during the period from June to January 24, 200," and Article 6(1) of the same Act provides that "the term of the lease shall be deemed to have been two years (see, e.g., Supreme Court Decision 2002Da41633, Sept. 24, 202).

According to the facts established by the court below, on June 15, 1998, the defendant leased the apartment of this case owned by the non-party to the plaintiff with a lease deposit of 40 million won and six months of lease period, and around that time, he received the lease deposit of 40 million won from the plaintiff and delivered the apartment of this case. The lease contract of this case has been renewed without notice of termination after the expiration of the above lease period, and the defendant notified the plaintiff on May 25, 2006 that the lease contract of this case will be terminated, and the plaintiff deposited 40 million won as the principal deposit on August 30 of the same year. The plaintiff requested the non-party to deliver the apartment of this case and delivered it to the non-party on March 2, 2009.

Examining the above facts in light of the legal principles as seen earlier, the lease contract of this case between the plaintiff and the defendant was effective, and the lease term of this case was two years pursuant to Article 4 (1) of the former Housing Lease Protection Act, which was implicitly renewed, and the expiration date was June 14, 2006. The defendant's notice of termination on May 25, 2006, which was within one month from the expiration date, was in violation of Article 6 (1) of the former Housing Lease Protection Act. Thus, the above lease contract was renewed for two years under the same conditions as the previous one after June 15, 2006. The plaintiff delivered it to the non-party owner of the apartment of this case at the request of the non-party that was the owner of the apartment of this case.

In the same purport, the court below is just in finding the amount equivalent to the rent from March 2, 2009 to which the plaintiff delivered the apartment of this case to the non-party as compensation for damages, and there is no error of law such as misapprehension of legal principles as claimed in the

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)